South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Hardeeville Motor Speedway, Inc. vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Hardeeville Motor Speedway, Inc.
Hwy. 17 S., Hardeeville, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
01-ALJ-17-0258-CC

APPEARANCES:
Petitioner & Representative: Hardeeville Motor Speedway, Inc., Hwy. 17 S., Hardeeville, SC, Kenneth E. Allen, Esquire

Respondent & Representative: South Carolina Department of Revenue, Nicholas P. Sipe, Esquire

Parties Present: Petitioner present, Respondent excused, Protestants present.
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case



Hardeeville Motor Speedway, Inc. with Dennis R. Beach (Beach) as President, filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for Highway 17 S, Hardeeville, SC. Protests seeking to prevent DOR from granting the application were filed by residents living in the area.



In this matter, not all of the requirements for obtaining a beer and wine permit are disputed. No dispute exists that the applicant has good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 2000). Further, the applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and occupies a principal place of abode in South Carolina. S.C. Code Ann. § 61-4-520(2) (Supp. 2000). In addition, the applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-4-520(4) (Supp. 2000). Likewise, the applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 2000). Additionally, the applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(8) and (9) (Supp. 2000). Finally, the applicant does not owe the state or federal government delinquent taxes, penalties, or interest. S.C. Code Ann. § 61-2-160 (Supp. 2000). Rather, the granting or denying of the permit turns upon the disputed matter of whether Beach meets the requirements of the location being proper.



Protests were filed pursuant to S.C. Code Ann. § 61-4-525 resulting in a contested case before the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 2000), 1-23-600(B) (Supp. 2000) and 1-23-310 (Supp. 2000). The evidence and relevant factors require granting the on-premises beer and wine permit but with restrictions.



II. Issue



Does Beach meet the requirements for an on-premises beer and wine permit in light of an allegation that the location is improper?



III. Analysis



Proper Location



1. Positions of Parties



Beach asserts he and the corporation meet the statutory requirements. DOR states it would have granted the permit but for the filing of protests asserting the location is improper. Accordingly, DOR awaits the outcome of this hearing. The protestants assert the permit should be denied since the location is not suitable.



2. Findings of Fact



Based on the preponderance of the evidence, the following findings of fact are entered:



A. General Facts of Location



The hearing for this dispute was held Thursday, August 9, 2001, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants. The numerous protestants present at the hearing chose to present testimony and evidence through a spokesperson.



On or about March 6, 2001 Beach filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 3202-4858. The applicant and the location were investigated by SLED and the investigating agent drew a map generally depicting the immediate area of the proposed location. Following SLED's and the applicant's posting of notices, protests were filed by residents living in the area.



The proposed business (and the place where the beer and wine permit will be utilized) is located at Highway 17 S, Hardeeville, SC. The business is a concession stand which will be operated in conjunction with a commercial entertainment facility used as a racetrack. The business hours of the concession stand will be on Saturday from 5:00 p.m. until 10:30 p.m. While no seating will be provided in the concession stand area, patrons will have seating in the racetrack facility.



B. Specific Facts of Location



1. Statutory Proximity Factors



The existence of churches, schools, and residences in the surrounding area is a proper factor for consideration. Here, some aspects of all three are relevant.



When traveling by the public thoroughfare, a church is 2 miles from the proposed location. However, no other churches are in the immediate area. In fact, the church is not visible from the proposed location due to the distance and the tree line. Additionally, the time of operation of the proposed location is normally one day a week, Saturday, from 5:00 p.m. until 10:30 p.m.



While a school bus stop is 413 feet from the proposed location, no schools are in the immediate area. In addition, the time of operation of the proposed location (Saturday from 5:00 p.m. until 10:30 p.m.) does not present an incompatibility with a school bus stop which will have operation hours on Monday through Friday



Approximately twenty-five residences front Toomerville Loop, a road near an exit of the racetrack property. Toomerville Loop is approximately a mile and a quarter in length. However, the closest residences are five residences which are some distance behind the proposed location. When the distance to these residences from the proposed location is measured by following the normal public thoroughfare, the distance ranges from the closest at 1,479 feet to the furthest at 2,730 feet.



If the distance to the residences is measured "as the crow flies," at least one residence is within 15 feet of the property line of the track facility. However, even as to that residence the distance to the racetrack and seating area for the facility is at least several hundred feet. In addition, the concession stand from which the beer will be sold will be located on the end of the facility furthest from the residences in the area. Further, the time of operation of the proposed location of Saturday from 5:00 p.m. until 10:30 p.m. does not create an abnormal conflict with the normal residential living requirements of sleep and rest.

2. Other Factors

No significant policing concerns have been established. While at many race events, fans bring beer into the facility, no police records document arrests for public intoxication. Further, for the area near Highway 17 S, Hardeeville, SC, no records of law enforcement officials were introduced to show a high incidence of crime occurring in and around the proposed location. Likewise, no records demonstrate any drug activity in the area. Further, Highway 17 provides an adequate traffic route for the proposed location.



The general nature of the area is conducive to commercial establishments for which an on-premises beer and wine permit is compatible. The nature of the area shows a proposed location on Highway 17 S, Hardeeville, SC within the city limits and, overall, presents an area primarily commercial in nature. Not only is the proposed location within a commercial racetrack, another commercial establishment, Roberts Trailer Service, is directly across the highway from the proposed location Further, the racetrack fronts on a major commercial highway, Highway 17.



3. Conclusions of Law



Based on the foregoing Findings of Fact, I conclude the following as a matter of law:



A. Law of Location Applied to Location Facts



Under S.C. Code Ann. § 61-4-520 (Supp. 2000), no beer and wine permit may be granted unless the location of the place of business is a proper location. In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). In deciding if an adverse impact will result, geography alone is not the sole consideration of suitability; rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).



1. Location Factors: Proximity



The proximity of the location to residences, churches, or schools is a proper consideration. Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992); William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Indeed, the sole factor of an improper proximity to any one of the institutions of residences, churches, or schools is a proper basis for denying a beer and wine permit. Id.



Considering all of the factors, the proposed location is not within an improper proximity to residences, churches, or schools. First, no schools are in the area and the school bus stop is 413 feet from the proposed location. Further, the time of operation of the proposed location (Saturday from 5:00 p.m. until 10:30 p.m.) is compatible with a school bus stop that will operate only on Monday through Friday.



Second, the proximity to residences is not a factor requiring a denial of the permit. While five residences are behind the proposed location, all are at significant distances via normal public travel ranging from the closest at 1,479 feet to the furthest at 2,730 feet. Even if the distance to the residences is measured "as the crow flies," while close to the racetrack property line, the closest residence is still several hundred feet from the actual racetrack and seating facility. In addition, the concession stand will be located on the end of the facility furthest from the residences in the area. Furthermore, the time of operation of the proposed location of Saturday from 5:00 p.m. until 10:30 p.m. does not create an abnormal conflict with the normal residential living requirements of sleep and rest.



Third, and finally, the permit is not within an improper proximity to churches in the area. The only church in the area is two miles away when traveling the public thoroughfare and the church is not visible from the proposed location. Further, the hours of operation of the proposed location are not incompatible with church functions. Indeed, the proposed location will operate only one day a week (Saturday) and even then for less than six hours. Such hours will not conflict with the hours of operation of the church.



2. Location Factors: Other



In addition to proximity factors, other more general factors are relevant as well. One such factor is the impact upon law enforcement.



Consideration can be given to the potential strain upon police to adequately protect the community. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). Also relevant is whether the law enforcement officers have already had significant problems with public intoxication at or near the location. Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). A pertinent fact is whether the location is near other locations that have been either a constant source of law enforcement problems or are locations where people loiter. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Consideration can be given to the extent to which the highway traffic presents a location that is heavily traveled or creates a traffic danger. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).



Here, no strain on law enforcement has been shown. In fact, during the hours of operation of the racetrack, security will be provided on site by off-duty local police. Further, no persuasive evidence exists that a problem with public intoxication is present. While the evidence establishes that some race fans bring beer into the facility, no evidence establishes that arrests for public intoxication have been made. In addition, no evidence establishes that the area is plagued with establishments that have demonstrated a problem with loitering or a need for police intervention. Finally, the area does not demonstrate a problem with traffic safety. Thus, police concerns do not suggest a denial of the permit.



Finally, a valid consideration is whether the surrounding area is commercial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). If yes, the area is more compatible with the presence of beer and wine than if it were not. Here, the proposed location is within the city limits and has a commercial atmosphere due to its frontage on a major highway, Highway 17. Thus, such factors weigh in favor of granting the permit.



Finally, when required, it is appropriate to impose restrictions. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits and licenses are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 2000); 23 S.C. Code Ann. Regs. 7-88 .



Here, a restriction is required with reference to Toomerville Loop, a road near an exit of the racetrack property. Toomerville Loop is approximately a mile and a quarter in length with approximately twenty-five residences fronting that road. Traffic from the racetrack must be prohibited from traveling toward the residential area on that road. Such is required due to a need to limit the impact of potential litter along Toomerville Loop and to limit a potential high volume of traffic on a rural road by race fans leaving a facility selling on-premises beer. Accordingly, the permit must be restricted to require that traffic leaving the exit of the facility nearest Toomerville Loop be prohibited from turning right onto Toomerville Loop. Rather, traffic must be directed to the left so that exiting vehicles will be ordered immediately to Highway 17.



B. Ultimate Conclusion as to Location



I have considered all of the factors relevant to the proposed location and have given due weight to the evidence presented at the hearing. The proposed location is not within an improper proximity to residences, schools, and churches. Further, no other location factors warrant denying the permit. Accordingly, the application by Hardeeville Motor Speedway, Inc. seeks an on-premises beer and wine permit for a location that, with restrictions, is a proper location.



IV. Order



Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:



DOR is ordered to grant the application by Hardeeville Motor Speedway, Inc. for an on-premises beer and wine permit at Highway 17 S, Hardeeville, S.C. with the following restriction:



Traffic leaving the exit of the facility nearest Toomerville Loop is prohibited from turning right onto Toomerville Loop. Rather, traffic must be directed to the left so that exiting vehicles will be ordered immediately to Highway 17.



AND IT IS SO ORDERED.









Dated: August 13, 2001

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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